Serving Overseas: Adverse Parties in Bankruptcy

It happens all the time. I’ll give a lecture or mention what I do at a bar association event, and the colleague I just met will express appreciation for what I do, tell me it’s a really neat niche, and then try to convince himself that our practice areas don’t overlap. I’m here to tell you that, yes, they do. The conversation usually goes something like this:

Sorry, Aaron. I’m a bankruptcy lawyer, I’ll never need to serve anybody in a foreign country. But thanks for doing that CLE. You’re a funny guy. (Funny how? I’m a clown? I amuse you?) No, I mean I really like how you got that picture of Boromir into your slide deck!

This is Boromir. I use him all the time in CLE decks and in blogs. Why reinvent the wheel? (To be sure, this is not Ned Stark. It just looks like Ned Stark.)

Wait a sec, there, pal. It’s likely that you will have to serve abroad someday. Ever run into an adversarial proceeding? (Yes.) Ever need to serve process on an adverse party? (Yes.) Think the Royal Bank of Scotland, or perhaps Credit Suisse might be your adversary? (Hmmmm.) Bear with me here…

The Rules of Bankruptcy Procedure govern how to manage an adversarial proceeding in Bankruptcy Court. Perfectly logical. And Rule 7004 governs how to serve the summons. Again, logical. But 7004 doesn’t get into a great deal of detail; it just incorporates the lion’s share of Rule 4 (Fed. R. Civ. P.) by reference.

The reality is that a bankruptcy action is going to be served under Rule 4 in most cases. That’s fortunate when you have a foreign adversary because 7004 doesn’t say anything about service abroad. Rule 4(f) specifically incorporates the Hague Service Convention, and even if it didn’t, Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), does. Schlunk says specifically that if the Convention applies, you have to follow it.

Bankruptcy lawyers, rejoice. For you are under no heavier a burden than the rest of us. Just pretend you’re trying a civil action, say, a patent infringement or what have you. No difference in how you get service effected.

There’s a problem, though: proper Hague service takes a while. A very long while in many instances. And bankruptcy summonses expire thirty days from issuance. Not a big problem here at home.

But, hang on, says the adverse party. It is a problem here at home. You mean to say that if the thing isn’t served for three weeks, I only have nine days to answer?

Well, no, not exactly. The serving party has to get the thing served, or at least, in the mail, within seven days, per 7004(e). Assume a couple of days in the custody of the United States Postal Service, give or take, and you’re going to have roughly the same amount of time to answer a Bankruptcy summons as you would a regular Summons in a Civil Action (21 days).

But 7004(e) applies only within the United States. The seven-day rule doesn’t apply when serving abroad.* So how to get around the expiration?

To be fair, any adversary is going to need two or three weeks to properly answer a complaint. This is why a civil defendant gets a standard 21 days from service (Due Process and all that stuff?). Simply put, though, if you have to serve an adversary outside the United States, it ain’t gonna happen quickly. Sure, we might be able to get it done in England or (Anglophone) Canada within a couple of days.

And if the document expires by its own terms before a judicial officer even gets his hands on the thing, he won’t serve it. So…

If the clerk uses a B2500A form, you have to get the language modified. This:

YOU ARE SUMMONED and required to file a motion or answer to the complaint which is attached to this summons with the clerk of the bankruptcy court within 30 days after the date of issuance of this summons, except that the United States and its offices and agencies shall file a motion or answer to the complaint within 35 days.

… should become:

YOU ARE SUMMONED and required to file a motion or answer to the complaint which is attached to this summons with the clerk of the bankruptcy court within 21 days after the date of service of this summons.

The BTXN 117a (an older version of the summons?) includes a safety valve:

{If this summons and complaint is served in a foreign country} Service of your answer must be made by the following date prescribed by the court ______________.

… but if the clerk gets lazy and just types “N/A” in the blank, you have to get the language modified.

{If this summons and complaint is served in a foreign country} Service of your answer must be made by the following date prescribed by the courtwithin 21 days of service.

It bears repeating. The Hague Service Convention controls how all this gets done wherever it applies. It’s a treaty, to which the United States is a party, and which entered into force right about the time my mom graduated from high school. Thanks to the Supremacy Clause, its strictures trump lesser laws (that includes the Rules of Bankruptcy Procedure and pre-printed forms that are incorrectly filled out by court clerks). A gentle reminder:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. (Art. VI-2)

(Emphasis mine.)

In short, if the clerk balks at revising the language, tell the clerk that James Madison & Alexander Hamilton said they have to.

* Rule 4(m) sets out a 90-day deadline for service in civil actions, but that deadline is also inapplicable to service abroad.

About Us

Aaron Lukken and Viking Advocates partner with a network of attorneys and agents around the world. Aaron has a wealth of experience assisting attorneys across North America in navigating the choppy waters of cross-border litigation.

Aaron became intrigued by international issues as an Army brat in the late 1970s, when his father was stationed at NATO Headquarters (SHAPE) in Belgium. His family’s three years abroad sparked a fascination with foreign cultures, languages, and politics, and eventually… international law.